Decision Date: 08/31/95 Archive Date:
09/01/95
DOCKET NO. 93-10 206 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an increased (compensable) evaluation for
service-connected kidney disability, currently rated as
noncompensable.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Yvette Robertson, Associate Counsel
INTRODUCTION
The veteran had honorable, active service from November 1951
to November 1953.
This action comes to the Board of Veterans' Appeals (Board)
from a November 1992 rating decision of the Nashville,
Tennessee, Regional Office (RO) of the Department of
Veterans Affairs (VA). The notice of disagreement was
received in January 1993. The statement of the case was
issued in January 1993. The substantive appeal was received
in February 1993. The veteran was afforded a hearing before
a Member of the Board in May 1993.
REMAND
When during the course of review, it is determined that
further evidence or clarification of the evidence or
correction of a procedural defect is essential for a proper
appellate decision, a Section of the Board shall remand the
case to the agency of original jurisdiction, specifying the
action to be undertaken. 38 C.F.R. § 19.9 (1994).
Compensation for service-connected injury is limited to
those claims which show present disability. 38 U.S.C.A. §
1131 (West 1991). Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992). Where entitlement to compensation has already
been established and an increase in the disability rating is
at issue, the present level of disability is of primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In a hearing before a Member of the Board, in May 1993, the
veteran testified that he was currently experiencing pain in
his back, lower stomach, and his groin area. He also
testified that he passed a kidney stone within the last
year, and that he is still experiencing pain from the scars
of a kidney operation that was performed while he was in the
service. In evaluating the claims made by the veteran, the
Board has carefully reviewed the veteran's medical records
that are associated with the claims folder. The medical
records consist of medical reports by R. Bruce Koefoot,
M.D., dated in December 1985, as well as by Travis Morgan,
M.D., dating from December 1982 to March 1992. However, the
Board finds that these medical records are insufficient in
order to make a thorough assessment of the veteran's claims.
Therefore, in light of the veteran's testimony in May 1993,
and the fact that no evaluation has been done to address the
veteran's claims about the recent passing of a kidney stone,
a VA medical examination is warranted. The examination
should address the veteran's current kidney disability, as
well as any other disability associated with the veteran's
claim of a kidney disability.
In the May 1993 hearing before a Member of the Board, the
veteran also testified that when Travis Morgan, M.D.,
evaluated him in March 1992, the doctor made reference to
the fact that the veteran's hemospermia had a direct
relationship to his kidney stones. According to entries in
the treatment records of the veteran, it was referenced that
the veteran had hemospermia. Since this issue has not been
addressed by the RO, and it is related to the veteran's
current claim, the RO must address this issue before it can
resolve the veteran's current claim on appeal. Where a
claim is so inextricably intertwined with another claim the
Board is precluded from exercising jurisdiction over that
claim, until it has been fully adjudicated. Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, to
properly evaluate the veteran's claim of entitlement to a
compensable evaluation for renal calculi, the claim of
entitlement to service connection for hemospermia, must be
adjudicated by the RO.
Additionally, in addressing the abovementioned claim of
entitlement to service connection for hemospermia, 38
U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310(a) (1994)
should be addressed. Also when aggravation of a veteran's
non-service-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability. Allen v.
Brown, 7 Vet.App. 439.
The case is hereby REMANDED to the RO for the following
development:
1. The veteran should be afforded a VA genito/urinary
examination, in order to determine the current nature and
severity of his kidney disorder. All pertinent complaints
or symptoms having a medical cause should be covered by a
definite diagnosis. The claims file is to be made available
to the examiner for review. Laboratory tests, including x-
rays should be completed. Where appropriate, the examiner
is requested to express a medical opinion as to the etiology
of any diagnosed urinary/kidney disorder, to include a
medical opinion regarding the degree of probability of a
relationship between kidney stones and hemospermia.
2. The RO should readjudicate the issue of entitlement to
an increased rating for a kidney disorder as well as
adjudicating the veteran's claim of secondary service-
connection, for hemospermia. After completion of the above,
if the decisions are adverse, the RO should issue a
supplemental statement of the case on the issue of the
increased rating and should also apprise the veteran and his
representative of the decision on secondary service
connection for hemospermia and furnish their appellate
rights.
Thereafter, the case should be returned to the Board. The
Board intimates no opinion as to the ultimate outcome of
this case. The appellant need take no action unless
otherwise notified.
EUGENE A O'NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
- 2 -